FOR THE PAST 20 YEARS I have worked for the Environmental
Protection Agency There I have had to choose between being a "good soldier"
and obeying orders or being a "good citizen" and obeying the law I have
not, I'm afraid, been a very good soldier.
When I came to the then-new agency I hoped to do
something useful and constructive. In 1974 I was made a branch chief of
the Hazardous Waste Management Division. The studies I supervised there
played an important part in the passage of the Resource Conservation and
Recovery Act (RCRA) of 1976, the first federal law regulating toxic waste.
I was also in charge of drafting rules for the treatment, storage and disposal
of hazardous materials.
In its preoccupation with inflation, however, the
Carter administration in 1978 took steps to protect industry by removing
the teeth from those regulations. At first I fought from the inside to
preserve the true spirit of the legislation. As a result, in 1979 I was
transferred to another position, with no duties and no staff. I became
an outspoken EPA critic-a whistleblower-and have been one ever since.
In that role I spend much of my spare time meeting
with grassroots environmental groups. Their members frequently ask me why
the Environmental Protection Agency does not seem particularly interested
in protecting the environment. The question usually comes from people who
are dealing directly with the EPA for the first time, ordinary citizens
with ordinary political views and lifestyles who suddenly find themselves
living close to a hazardous-waste facility; incinerator, or nuclear-waste
dump. These are people who started out with a strong faith in their country
and its institutions, who had always thought of the EPA as the guys in
white hats who put the bad polluters in jail. "If there were anything wrong
with it," they say, "the government wouldn't let them do it."
To their surprise, these folks find that the EPA
officials, rather than being their allies, are at best indifferent and
often antagonistic. They find that the EPA views them, and not the
polluters, as the enemy. Citizens who thought that the resources of the
government would be at their disposal find instead that they have to hire
their own experts to gather data on the health and environmental impacts
of proposed facilities, while the government sits on the same information-collected
at public expense. And if these folks want to go to court, they have to
run bake sales to hire attorneys to go up against government lawyers whose
salaries are paid by the taxpayer.
To understand why the Environmental Protection Agency
is the way it is, you have to start at the top, and since the EPA is part
of the executive branch, that means the White House. The president (any
president, regardless of party) and his immediate staff have an agenda
of about a half-dozen issues with which they are most concerned. These
are usually national security, foreign affairs, the economy the budget,
and maybe one or two others: Call them Class-A priorities. All others --housing,
education, transportation, the environment--are in Class B.
The president expects performance in Class A. He
will expect the military to be able to deploy forces anywhere in the world
when an emergency arises-and if it isn't, he will bang heads until it is.
If Congress doesn't support his budget, he will call the budget director
into his office and pound his fist on the table. But can you picture the
president bringing the secretary of transportation into the Oval Office
and yelling because of poor bus service in Sheboygan? Or summoning the
administrator of the Environmental Protection Agency in and chewing him
out for pollution in the Cuyahoga River? I can't. The president expects
performance in Class A; in Class B he expects only peace and quiet.
But regulatory agencies, by their very nature, can
do little that doesn't adversely affect business, especially big and influential
business, and this disturbs the president's repose. The EPA, for instance,
cannot write regulations governing the petroleum industry without the oil
companies going to the White House screaming "energy crisis!" If it tries
to control dioxin emissions, The New York Times (whose paper mill
in Canada has been sued for dumping dioxin into the Kapuskasing, Mattagami,
and Moose rivers) writes nasty editorials. If it tries to enforce the Clean
Air Act, polluters run to Vice-President Quayle's Council on Competitiveness
for "regulatory relief." Agency employees soon learn that drafting and
implementing rules for environmental protection means making enemies of
powerful and influential people. They learn to be "team players," an ethic
that permeates the entire agency without ever being transmitted through
written or even oral instructions. People who like to get things done,
who need to see concrete results for their efforts, don't last long. They
don't necessarily get fired, but they don't advance either; their responsibilities
are transferred to others, and they often leave the agency in disgust.
The people who get ahead are those clever ones with a talent for procrastination,
obfuscation, and coming up with superficially plausible reasons for accomplishing
nothing.
For example, the EPA used to grant billions of dollars
for the construction of local sewage-treatment plants. These plants generated
a sludge that the EPA recommended for use as a fertilizer. In 1974 I pointed
out to my managers that there was considerable evidence from Department
of Agriculture studies that some municipal sewer sludge contained poisons
that could be transmitted to people when it was used as fertilizer. I proposed
regulations to control the problem. This notion was very unpopular with
the burgeoning sewage-plant-construction industry and its promoters within
the EPA. The responsibility for this issue was taken out of my hands and
transferred to a committee, which studied sludge regulation for a year
and did nothing other than recommend further study. For this they all received
medals and cash bonuses as "outstanding performers."
In the past 18 years this story has been repeated
many times. Hundreds of people in the EPA have advanced their careers--and
spent tens of millions of dollars--by busily drawing up work plans, attending
meetings, making proposals, writing reports, giving briefings, conducting
studies, and accomplishing nothing. Today the problem of how to regulate
sewage sludge has still not been resolved.
At this point you may protest that the EPA has
written
many regulations, that it has in fact reduced pollution in many areas,
cleaned up Superfund sites, and collected millions of dollars in fines
from polluters, some of whom have even been sent to jail. Yet in most cases
the agency had to be coerced into meaningful action. More often than not,
the EPA actually opposes the passage of tough environmental laws,
and organizations like the Sierra Club have to sue in federal court just
to make the agency do what it is funded for and is legally required to
accomplish. For example, when I was writing guidelines for the government's
procurement of recycled materials, I was told that a proposed regulation
would not even be considered for the administrator's signature unless there
was a court-ordered deadline. With my encouragement, several organizations
sued the EPA in order to get the regulations out.
On another occasion I was in charge of writing regulations
for the management of hazardous-waste landfills, which RCRA required to
be issued in 1977. When Gary Dietrich, my boss, gave orders delaying the
process, I warned him that we would miss the legal deadline. He laughed.
"Nobody ever got thrown into jail for missing a deadline," he said.
He was right. I was taken off the job. Again I contacted
an environmental organization, which sued the EPA. The court imposed another
deadline. The EPA missed that one, and the judge set another. They missed
that one too, and many, many more, but nobody was sent to jail for defying
the court's orders or for not implementing the law. On the contrary; many
were well rewarded. Meanwhile, the public was exposed to poisons leaking
out of countless unregulated hazardous-waste dumps. Dietrich later left
the agency to be a consultant for Waste Management, Inc.
(This leads us to what I call Dietrich's Law: "No
one in the EPA is ever sent to jail, or loses his job, or suffers any career
setback for failing to do what the law requires." And the corollary: "Many
people ruin their careers in the EPA by trying to do what the law demands.")
The landfill regulations were finally issued in
1982, five years after they were due. They were riddled with loopholes,
such as the final say given to politically appointed regional administrators
in setting safety levels of toxic materials. Even so, the press hailed
the EPA's heroic achievement--although the bloom quickly faded. After hearing
testimony from me and many others, Congress was convinced that the regulations
were too weak, and passed a new law in 1984 requiring tougher standards.
This time it added a "hammer" provision: If the EPA missed the deadline,
then all the wastes from a long list of chemicals would be banned from
landfills. For the first time I can recall for regulations of this magnitude,
the EPA met its deadlines. Why? Because in this case, hazardous-waste firms
would have been hurt if the rules weren't issued. The EPA is simply more
concerned with protecting the industries it is supposed to regulate than
in protecting the public interest.

DOES THIS MEAN that the EPA has cynically abandoned
the environment for the sake of the powerful hazardous waste lobby? Actually,
most people in the agency sincerely equate the waste management industry
with protection of the environment, and see the industry's opponents as
anti-environmental NIMBYs. They forget, however, that commercial hazardous-waste
management is primarily a business, and as such it aims to maximize income
and minimize costs. Income is produced by taking in wastes through the
gate; waste is money and the more the better Costs are incurred by treating
the waste so that it won't poison people and the environment. Obviously
these goals are diametrically opposed to what should be those of the EPA:
to reduce the production of hazardous wastes and to maximize protection
of human health and the environment.
The EPA's confusion on this matter is well illustrated
in the ease of the world's largest hazardous-waste incinerator, now under
construction in East Liverpool, Ohio, an already heavily polluted area
surrounded by homes and schools and subject to frequent thermal inversions.
(Behind the project is a consortium of investors put together by Arkansas
billionaire Jackson Stephens, a golfing partner of Dan Quayle and contributor
of hundreds of thousands of dollars to George Bush's presidential campaigns.)
Local citizens found that the permit originally issued by the EPA was full
of irregularities and outright violations of the law. Thus, when the incinerator
operator asked for a permit modification to install a spray dryer (a device
many technical experts felt was unsafe), the permit would ordinarily have
had to be issued again, not just modified.
However, given the public mood, this was likely
to result in long delays, if not revocation of the permit. The incinerator
operator told the Ohio EPA that he couldn't "risk any appeals." The Ohio
EPA agreed, saying that "if there is a way to authorize this change without
a formal permit change, we should try to do so." William Muno, acting director
of the EPA's waste-management division in Chicago, followed his instincts:
At a meeting with congressional staffers on November 12, 1991, he said
that he would not order a permit change because the EPA "had to treat our
constituents [i.e., the incinerator operators] in a fair and equitable
manner."
(Influence peddling in this arena does not stop
with the EPA. The executives and lobbyists of the waste-management companies
are in constant touch with the White House, members of Congress, state
legislators, state environmental-protection agencies, the press, and national
environmental organizations. The Audubon Society the National Wildlife
Federation, and the Conservation Foundation all have top executives of
the waste-management industry on their boards.)

WASTE MANAGEMENT is the growth industry of the
late 20th century It has become very rich through its ability to control
the regulators who are supposed to control it-and it shares this wealth
with its benefactors. Government bureaucrats soon learn that, while crossing
the industry can get them into a lot of trouble, cooperating with it has
many rewards-high among these the hope of lucrative future employment.
Indeed, rather than the environmental enthusiasts who flocked to the EPA
in its early years, the agency is now full of careerists who view their
jobs as stepping-stones to bigger and better things. Scores of federal
and state employees have gone on to careers in the hazardous-waste industry
(see "EPA's Revolving Door," page 77), including
three out of the five EPA administrators. (Of the other two, one left the
agency in disgrace and one was a millionaire already)
No one is more closely associated with the revolving
door at the EPA than William Ruckelshaus, appointed the agency's first
administrator when it was created in 1970. When he left the EPA in 1973,
Ruckelshaus became senior vice-president and director of Weyerhaeuser,
the huge timber and paper company and target of many environmental groups.
He served as EPA administrator a second time from 1983 to 1985. Between
and after his two terms he was a director of several companies concerned
with EPA regulations, including Monsanto, Cummins Engine Company (a diesel-engine
manufacturer), Pacific Gas Transmission, and the American Paper Institute.
After his second stint at the agency he formed a
consulting firm called William D. Ruckelshaus Associates, which was then
hired by the Coalition on Superfund, an organization seeking to weaken
the Superfund law by absolving polluters of strict legal liability for
their actions. The coalition included such Superfund polluters and their
insurers as Monsanto, Occidental Petroleum, Alcoa, Flow Chemical, AT&T,
du Pont, Union Carbide, Aetna Insurance, and Travelers Insurance. Assisting
Ruckelshaus were Lee Thomas, his hand-picked successor as EPA administrator,
and William Reilly, then head of the Conservation Foundation. (Ruckelshaus
and Thomas helped fund Reilly's organization to produce studies in support
of the coalition's position.)
Ruckelshaus went on to become CEO of Browning-Ferris,
the second largest waste-management company in the United States, for a
guaranteed minimum annual salary of $1 million. Browning-Ferris had a dreadful
environmental record and had been hit with millions of dollars in fines.
Ruckelshaus was supposed to clean up the company's reputation, but the
appointment did more to tarnish his.
When George Bush ran for president in 1988, Ruckelshaus
was his environmental advisor, and was able to install his protege Reilly
as EPA administrator; and former Ruckelshaus Associates vice-president
Henry Habicht as deputy administrator. Thus the two top executives of the
EPA were placed by the head of a company that is a major polluter, heavily
regulated by the agency; responsible for many Superfund sites, and a contractor
for EPA-funded Superfund cleanups.
People outside the agency often assume that the
national environmental groups have a stronger influence with-in the EPA
than does industry. The revolving door explains why this is not the case:
Industry can offer EPA employees things that environmentalists cannot,
especially high-paying jobs. It also offers generous contributions, over
or under the table, to almost anybody who will take its money (Waste Management,
Inc. has one of the largest political-action committees in the country;
between 1987 and 1988 it contributed $430,000 to congressional candidates.
Other examples of WMI's largess include flying a politician in a corporate
jet to visit a WMI facility and giving him a cash gift of $10,000; giving
a congressional staffer a $2,000 "honorarium" to visit a WMI facility;
and paying an outright $3,000 bribe to a local commissioner in Florida.)
Environmental groups tend to regard the EPA as an
institution, dealing with it through congressional committees, the courts,
and top agency executives. Industry does the same, of course, but it also
interacts with individual EPA employees at every level, working directly
with the field inspectors and permit writers responsible for making particular
decisions. When I was in charge of writing regulations I was the object
of this courtship, showered with flattery, meals, trips, and hints of future
employment. People who cooperate with industry also find that its lobbyists
will work for their advancement with upper management. Those who don't
cooperate find the lobbyists lobbying for their heads.

WHAT CAN BE DONE, then, to make the EPA serve the
public interest? Appointing an energetic administrator and giving him or
her a lot of money and authority will not work. If; as is usually the case,
the president demands only peace and quiet, more funding and power will
only make that easier to deliver. The head of the EPA will not be effective
unless the president wants effectiveness. In my 20 years with the agency
that happy situation existed only under Richard Nixon during William Ruckelshaus'
first term as administrator. Presidents Ford and Carter were too concerned
with the economy and paid only lip service to EPA regulations. Ronald Reagan
didn't even bother with lip service, appointing hooligans to run the agency.
When Anne Gorsuch. was finally forced to resign in March 1983 over her
political manipulation of the Superfund program, Ruckelshaus was brought
back as Mr. Clean; but his second administration was a flop. The man who
had been so effective under Nixon was a dud under Reagan, which shows that
the president is key to making the EPA work. Under George Bush, we have
reverted to the days of lip service, with no real support. This is, I'm
afraid, what scientists would call the EPA's "equilibrium state."
To achieve genuine reform, realism must replace
idealism. We have to deal with what the EPA really is and what we know
about it, rather than what we would like it to be. This will require narrowing
the agency's discretionary power and transferring as much authority as
possible into the hands of the public. Following are some suggestions to
those ends:
Hammer Provisions. As we saw above, the secret
of these blunt legislative instruments is their tacit recognition that
the EPA works more diligently to protect the industries it regulates than
to protect the public. Hammer provisions can also be used to enforce goals,
which at present are meaningless, since nothing happens if they aren't
met. But suppose the EPA administrator and other top political appointees
were hired with the proviso that unless specific targets were met--a l0-percent
reduction in hazardous waste generation within a year, say--they would
lose their jobs. Perhaps then the administrator would spend more time in
achieving goals than in making speeches about them.
Liability. Civil-liability provisions are
another great, unbureaucratic instrument for reform. Such provisions in
Superfund actually did more to change the way industry handles its hazardous
waste than any other act of Congress--and this came about almost by accident.
Congress, as is often the case, was vague and ambiguous when it defined
the liability of polluters for the damage and cleanup costs of old dump
sites. In interpreting that fuzzy language, however; the courts determined
that liability is "strict." This means that no showing of fault is necessary
to establish responsibility, little proof of the relationship between cause
and effect is required, and each liable party is potentially responsible
for the entire cleanup.
These provisions are so effective that industry
and its insurance companies have spent millions trying to get rid of them.
They would prefer that the funds for cleanup be pooled and paid out on
a "no fault" basis. (There's nothing like strict liability to convert capitalists
to socialism.) The fear of liability is a far greater incentive to industry
to do the right thing than is fear of the EPA.
Regulations. The EPA is a wimpish regulator.
Take the case of hazardous-waste incinerators. It makes no difference what
you as a private citizen may see, feel, or smell coming out of the smokestack.
Emissions could melt the paint off your house or force you to wear a gas
mask, but that would have no bearing on the EPA's enforcement, which relies
instead on data supplied by the incinerator operators. Ironically agency
officials often don't know how to interpret this data themselves, and have
to depend on the company being investigated to do it for them.
Since little attention is paid to the content of
the waste being burned, every now and then an incinerator explodes, as
happened recently to a Chemical Waste Management incinerator in Chicago.
In Kentucky, Don Harker, former head of the state's waste-management division,
was fired because he tried to revoke the permit of the Liquid Waste Disposal
(LWD) incinerator at Calvert City. "I don't know what LWD has burned,"
he said. "I don't think LWD knows what it has burned. I don't think anyone
does."
Even if an inspector finds a violation, this only
triggers a lengthy complex process with many levels of warning, review;
appeal, negotiation, and adjudication before any action is taken (or; more
often, avoided). Compare this with what happens when you park under a "No
Parking" sign. A policeman writes a ticket, and you can either pay the
fine or tell it to the judge. If the EPA wrote the rules for parking violations,
the policeman would first have to determine if there were sufficient legal
parking available at a reasonable cost and at a reasonable distance, and
would then have to stand by the car and wait until the owner showed up
so that he could negotiate a settlement agreement. This is what comes of
Congress giving the EPA administrator broad discretionary power to write
and enforce rules. We would be better off if he were more like a cop.
Bad-Boy Laws. Several states have laws that
bar them from doing business with chronic offenders. Unfortunately these
laws are usually discretionary and are rarely invoked in hazardous-waste
cases. If they were, all of the big commercial hazardous-waste firms would
be out of business in those states--which is why the laws are not used.
I would like to see a mandatory federal bad-boy law applied to the licensing
of hazardous-waste sites and to the awarding of Superfund contracts.
Of course, EPA officials always argue that if we
close down the big commercial operators, there will be no one left to run
the hazardous-waste business. That's like saying that we have to let racketeers
run gambling casinos because no one else knows how. The hazardous-waste
business is extremely profitable, and there are plenty of honest businesspeople
who would love to get a foot in the door. There's no reason to tolerate
crooks.
The Revolving Door. It should be perfectly
clear that a person in a regulatory agency who views the agency as a stepping-stone
to a better-paying job cannot serve the public faithfully. Yet Congress
has never passed a law restricting persons in regulatory agencies from
going to work for the companies their agency regulates. I would propose
a law forbidding political appointees and senior government employees from
accepting any form of direct or indirect compensation from any person regulated
by their agency for a period of five years after they leave government
service. The number of years could be reduced for lower-ranking civil servants.
This law should, of course, include lawyers.
The common argument that this would keep good people
from entering government is nonsense. Good people do not use government
service as a means of getting rich quick. A revolving-door rule would keep
out the ambitious careerists who now permeate the federal bureaucracy,
and let in men and women with a real desire to serve their country.
Conflict of Interest. The revolving door
is an individual conflict of interest, but there is a closely related institutional
conflict in the EPA and some other regulatory agencies. The Nuclear Regulatory
Commission, for example, has responsibility for regulating nuclear-power
plants, but it also promotes the use of nuclear power. Similarly the EPA
has the responsibility for regulating hazardous-waste facilities, but also
promotes the siting of these facilities. When the EPA assures the safety
of a proposed hazardous-waste installation, citizens living nearby never
know which hat it is wearing, regulator or promoter
An easy solution is for Congress to pass a one-sentence
law: "No regulatory agency may spend appropriated funds to promote the
use of the products or services that it regulates."
The Carrot and the Stick. Every time the
EPA falls short of expectations, it complains that it doesn't have enough
money people, authority or time, so Congress and the courts give it more
of everything. What kind of incentive is that? When I was a manager if
a subordinate failed to do an assigned task and gave me the excuse that
he didn't have enough resources or time, I would ask him if he had requested
the resources and time, and if he had warned me that the task could not
be completed unless he got them. If the answer was no, he was in trouble.
Congress should adopt the same standards for the EPA.
One guaranteed quick fix would be to reward whistleblowers.
At present, a person who calls attention to waste, fraud, or abuse at high
levels of the EPA can only look forward to harassment and isolation, with
no hope of promotion or even a responsible position. Congress ought not
only to protect whistleblowers, but to reward them when their charges prove
correct. This would greatly increase the number of whistleblowers and decrease
the amount of waste, fraud, and abuse. If you think rewarding public servants
for doing their duty is excessive, consider the cost of failing to do so.
Consent Agreements. One of the most egregious
abuses of discretionary authority by the EPA is the use ofconsent agreements
to settle regulatory violations. A consent agreement is like a plea bargain,
a contract wherein a defendant agrees to stop an illegal activity without
admitting guilt. Consent agreements by the EPA usually result in the defendant
paying a fine and promising to sin no more.
A big problem with consent agreements is that they
are drawn up in secret, with no public review. While they usually concern
cleanup of dumps or hazardous-waste spills, the injured community does
not participate. This secrecy is an open invitation to corruption and abuse.
Polluters with good connections and good lawyers are able to get consent
agreements that grant them all sorts of privileges to which they are not
entitled, in exchange for paltry fines. A good example is what happened
when Chemical Waste Management was denied a permit to store carcinogenic
polychlorinated biphenyls (PCBs) at its hazardous-waste dump at Emelle
Alabama. They stored them there anyway, and got caught. An eventual consent
agreement fined Chem Waste far less than it made by its illegal action,
and threw in a PCB-storage permit. The agreement also exempted the firm
from punishment for any other past violations, even those that had not
yet come to light. In short, for a $450,000 fine, Chem Waste received waivers
worth more than $100 million. Congress should limit the scope of consent
agreements, require that they be made public, and require the court to
hear from any past or potential injured party before signing.

INSTITUTIONS ARE made up of people. Behind the
great and powerful Oz is a fragile little man pulling the levers. Because
it must be implemented by weak and fallible individuals, the liberal dream
of powerful institutions protecting and perfecting our lives can easily
become a nightmare of corruption and abuse.
The Founding Fathers knew this. They didn't trust
institutions. They didn't think a nation could remain free unless its citizens
stayed on top of things themselves; that's why they set up such an elaborate
balance of competing interests, of checks and balances. I believe the right
approach is to reduce the power of institutions, and increase the power
of the people, who have the most at stake.

For more information

William Sanjour has
written a lengthier and more detailed critique of the EPA, available for
$15 from the Environmental
Research Foundation (ERF). PO Box 73700, Washington, DC 20056-3700.
Also available from ERF is a lively weekly newsletter. Rachel's Hazardous
Waste News. Subscription rates are $15 for students, $400 for
businesses and $40 for all others.
Waste Management
Inc.: An Encyclopedia of Environmental Crimes and Misdeeds ($20), and
the same study in abstract form, Trash Into Cash ($5), are
available from Greenpeace USA.
1436 U St., N.W., Washington. DC 20009.